"I am by birth a free Commoner of England, and am thereby intailed or intituled unto an equall priviledge with your selfe, or the greatest men in England, unto the freedome and liberty of the Lawes of England."
William Thompson, 14. of December, 1647

Monday, 21 June 2010

As Friedrich Hayek notes in his essay 'Why I am not a conservative', libertarians and conservatives have, over the last few decades, often found themselves in the same trench fighting a common enemy, but he cautions us not to overlook the significant differences between these two positions.

Without dwelling too long on that essay, or navel-gazing over political labels, the meanings of which naturally evolve over time, and are undermined in political discourse by being strawmanned by their foes and by lazy thinking, rhetoric and parotted slogans from all sides, it is important to assert libertarian principles with clarity, especially where they are distinct from our conservative allies. This is certainly the case with regard to criminal law.

Here on my blog, and elsewhere, two cases have been noted, which illustrate two different problems with our current justice system. In the first, and it is not the most glaring I am sure, but I think it is a reasonable example of the leniency shown by the justice system with regard to violent, pitiless criminals. A man robbed and beat an old woman almost to death, a neighbour who had tried to help him in the past. Not only did the Crown Prosecution Service accept a plea bargain, rather than prosecute the more serious charge of attempted murder, but the judge handed down a sentence which will most likely see the man out of jail in less than five years. This is because prisoners are almost automatically released midway through their sentence (in this case 10 years) and he may well have spent some time on remand. Considering the age of the man, he will be released with many years ahead of him, in which he is likely to reoffend and, as he has shown himself to be capable of gross violence, I see his sentence as an equally gross dereliction of duty on the part of the justice system. So, in this case and many others, I denounce the authorities for failing to adequately punish the convicted criminal.

In the second case, a woman is sent to jail for possessing an old pistol, which her father brought back from his travels. According to the law, she must be punished, but according to my views, she has done nothing wrong. I do not accuse the authorities of leniency, nor indeed the opposite. It is the case that the law is wrong. Where there is no offence, there should be no punishment, and she has committed no offence against anyone, by the mere act of possessing an unused, unloaded firearm. But the case makes clear that a libertarian, such as I, cannot call for 'zero tolerance' to be shown to all criminals. As the law stands today, she is indeed a criminal - she herself pleaded guilty, thereby denying the possibility of a jury letting her off in the face of the evidence (a 'perverse verdict'), a possibility no doubt very slim, but nevertheless a fundamental check on the power of the state to enforce arbitrary and wrong-headed laws.

As I've shown in earlier posts, the right to keep and bear arms in our own self-preservation and defence was historically counted amongst the essential English liberties. I can, for rhetorical effect, claim that is 'the true law of the land', and I can believe that to be so. But my confidence of finding a jury who agrees with me and would let me off with a wink and a smile if I'm hauled before them for strolling around with a 1911 tucked in my belt is not great.

This is not, by far, the only area where the current criminal law is wrong-headed. The drug laws are another glaring example - glaring, at least, to a libertarian, less so or not at all to a conservative, such as Peter Hitchens. Now, it is worth pausing a moment to consider Mr Hitchens. In many ways I agree with him, and because he speaks the truth as he sees it, he's worth listening to, even when he's wrong. At least you see a mind in action, not a party-programmed automaton. He has staunchly defended traditional values that I hold dear, such as jury trials and habeas corpus. He is right on so many things; his opposition to the wars in Iraq and Afghanistan and to ID cards being some. But along comes the issue of drugs and we have a real division, because he's heading for a different destination, although our paths converge for much of the journey.

If I don't press the 'publish' button soon, this'll end up forever as a draft, so I'll cut it short and take up the theme in another post. What I want to do is to give some coherence to the principle of the Rule of Law, why and how this has been subverted, and what I believe needs doing about it.